June 7, 2011

"... giving Republicans who control the Legislature hope the court may act quickly in their favor.... Tough questions came for both sides during 5 1/2 hours of arguments that seasoned attorneys said were the longest in memory, if not in state history."

Robert Jambois, the attorney for Assembly Minority Leader Peter Barca (D-Kenosha), told the justices they should issue a ruling that makes it clear lawmakers cannot keep the public away from its business - especially when it is considering controversial legislation.

"If the open meetings law doesn't mean anything to the Wisconsin Legislature... then it doesn't mean anything ever," Jambois said....

The open meetings law has an exception that allows the Legislature to write rules that exempt it from the meetings law. The two sides disagree whether lawmakers have established a rule on when meetings must be noticed for joint committees.

25 comments:

Robert Jambois, the attorney for Assembly Minority Leader Peter Barca (D-Kenosha), told the justices they should issue a ruling that makes it clear lawmakers cannot keep the public away from its business - especially when it is considering controversial legislation.

How about a ruling that makes it clear that lawmakers cannot run away from the public's business?

The first time I read the paragraph that's what I thought Peter Barca (D-Kenosha)'s attorney was proposing. I had to reread it.

The Democratic position is that the public must be allowed access to legislative business, but only when Democrats deign to show up. What a bunch of wankers.

The Fitzgerald brothers stance all along has been that Judge Sumi did not have the authority to interfere in how the legislature conducted its business. I'm surprised to see the Justices sharing the same skepticism.

Here in Illinois, the state judges are pretty awful. They just don't know the law. So, for example, evidence gets into a case that just shouldn't be in, and evidence is allowed that just shouldn't be allowed. It's a much more fair hearing in federal court, for both sides. I've never argued at the appellate level, but I imagine things are better there.

I always assumed that Wisconsin Republicans have assumed that this ruling will be overturned quickly. But then you remember things like the ridiculous Florida state Supreme Court in 2000...

Agreed Henry, it is pretty ironic that Dems are claiming injury by being forced to stand outside the door...but, have no problem taking the business of the people to another state. If proximity to the discussion is the issue...Dems lose on their own behavior. Rules for thee but none for me...again.

I haven't followed this brouhaha closely enough to know whether the case has a standing issue in it. The 'open meetings' provision of the WI constitution is not self-executing, and it's not clear that it should give rise to any justiciable claim. But (assuming that the WI courts have decided that it does), what is the standing of any individual plaintiff? They say they were deprived of their putative right to attend and watch a legislative committee meeting. Normally standing requires some specific injury to the plaintiff seeking to obtain a judicial ruling that separates that plaintiff from all others. If the entire public has suffered the same injury, that fact usually leads to the conclusion that no one has standing.

Those standing rules developed mostly in federal cases, and are part of the way in which federal courts enforce the 'case or controversy' limitation of Art III. None of that applies in a case under WI law, of course. But many states have adopted standing rules for the same purpose -- to avoid having the courts become entangled in political controversies that are properly relegated to the political branches. It's easy to see how a state court could deem that approach to be the path of wisdom here (at least one not as committed to finding a way to rule for plaintiffs as the lower court seemed to be here).

AllenS....Maybe We need a Danish Law Professor who does Sumo Wrestling. Seriously, the separation of powers area of the law is the hardest one in which to find pat answers. If the three separate but equal and divided branches decide to fight it out, then the one with the guns would win. But John Marshall gave us the next best solution which is our tradition to submit close calls to the Black Robed Justices who then declare a winner. Stay tuned.

I think the right constitutional answer is that the Open Meetings Law cannot apply in force to the Legislature even if the open meetings law says it does. A legislature cannot pass a law to bind itself or a future legislature. Any law it passes implicitly overides any rules that a prior legislature passed. The legislature is only bound by the constitution. Therefore, the Legislature cannot, in fact, violate the Open Meetings Law.

In the Milwaukee Journal case, the court stated "The legislature’s compliance with rules and proceeding is exclusively within the province of the legislature because a legislature’s failure to follow its own procedural rules is equivalent to an ad hoc repeal of such rules, which the legislature is free to do at any time.” “Courts will not intermeddle in purely internal legislative proceeds even when the proceedings at issue are contained in a statute.”

Judge Sumi’s only plausible argument is her citation to the Constitutional Provision that “the doors of each house shall remain open expect when the public welfare requires secrecy.” I.e. a court could find that only giving two hours notice violates this specific constitutional requirement. However if the law is struck down because of that provision, then many other statutes will also be at risk because house and senate rules alone require far less notice for various meetings than is required in the open meetings law. Therefore, its hard to see how taht argument works.

A legislature cannot pass a law to bind itself or a future legislature. Any law it passes implicitly overides any rules that a prior legislature passed.

I think you're over-simplifying here, as well as mixing rules and laws.

A legislature cannot pass a law which a future legislature is unable to overturn. However, laws that they pass do apply to themselves unless they specifically say otherwise. For example, the legislature could not get together and murder someone, and thereby effectively repeal the law against murder. Repealing laws requires a new law, which requires the governer's signiture or a veto override.

Legislative rules and proceedures are different, and the legislature can change them any time they want by any means they want, and no one would have any recourse except to complain to the legislature, and the legislature would have the final say on the matter.

This raises two issues regarding the current case:

1) Did the scheduling of the meeting effectively change the legislature's rule as related to the open meetings requirements. I'd say the answer is no, otherwise the open meetings law means nothing with regard to the legislature, and that was clearly not the law's intent.

2) Since the legislature can change its proceedures at any time, does the voiding of the action of the committee meeting prevent the legislation from becoming law? I'd say no, since the committee meeting step is simply a legislative proceedure, as long as the constitutionally requried votes of the house and senate were legal then the law still stands.

David...If the Governor is our king, and the Assembly is our Parliament, then we don't need any Judges. All that we need is Cromwell's Army. That horrible experience during the 1600s still haunts thinkers about our democratic process today. Therefore the Supreme Court will have to call these balls and strikes.

I think you're over-simplifying here, as well as mixing rules and laws.

Well I think we are saying the same thing that the open meetings law cannot limit the legislature in its procedures to enact subsequent laws. Maybe it is technically correct to say that the legislature can violate the open meetings law, but the court has no power to strike down legislation based on the violation since the procedure (the open meetings law requirements) is not required in the constitution.

I am unclear as to what the open meetings law actually is other than there is a timeline for notification of meetings.

In California, we are subject to the Brown Act which is a version of the open meetings act, I think. Under the Brown Act, not only must we notifiy the public of regular meetings 72 hours before the meeting,(special or emergency meetings have a 24 hour period) there must also be an agenda. Items not on the agenda cannot be addressed or have any action taken other than to schedule them for a future agenda.

It is a real pain in the ass for the District Board that I am on. It hinders our ability to make any kind of timely decisions when we have constantly put items out onto future agendas. I know it is to keep the agencies from making decisions that are hidden from the public, but what a pain.

Also the Brown Act generally prohibits more than a certain number of Board Members from being in the same place, even when not on official business, to prevent a quorum of the Board from making decisions outside of the public's eye. Again another pain in the ass since 3 of 5 members can't go to Rotary together or attend other functions that may allow them to collude. Strictly social occasions like birthday parties and weddings are ok....unless you have some jack off news reporter who wants to make a big deal about violating the Brown Act.

This agenda rule and association rule would make it literally impossible for the Legislature to effectively debate and pass laws.

A legislature cannot pass a law which a future legislature is unable to overturn. However, laws that they pass do apply to themselves unless they specifically say otherwise. For example, the legislature could not get together and murder someone, and thereby effectively repeal the law against murder. Repealing laws requires a new law, which requires the governer's signiture or a veto override.

What are you basing this on? It has long been recognized that a legislature can implicitly nullify previous laws simply by passing incompatible subsequent laws.

Arguably, you might have a case against individual legislatures, but I don't see how a law itself can violate the law. It *is* the law, passed as required by the Constitution and signed by the governor.

For example, the legislature could not get together and murder someone, and thereby effectively repeal the law against murder.

Bad analogy. We're not talking about the acts of legislators here, we're talking about the legislation itself.

While "laws" require passage of a bill and signature or veto override in our republican system, the ability of each legislature to set its own rules is also recognized. Within some broad guidelines, it is not the place of the judiciary to tell the legislature whether or not it has enacted a bill. The legislature certifies that.